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Waite v. Bowen

decided*fn*: May 28, 1987.

ROGER WAITE, PLAINTIFF-APPELLANT,
v.
OTIS R. BOWEN, SECRETARY, DEPARTMENT OF HEALTH AND HUMAN SERVICES, DEFENDANT-APPELLEE



Appeal from the United States District Court for the Western District of Wisconsin, No. 86 C 4, John C. Shabaz, Judge. This appeal was originally decided by unpublished order on April 30, 1987. See Circuit Rule 53. The Court has subsequently decided to issue the decision as an opinion.

Cummings, Wood, Jr., and Coffey, Circuit Judges.

Author: Cummings

CUMMINGS, Circuit Judge.

Roger Waite appeals the district court's judgment upholding the decision by the Secretary of Health and Human Services in which Waite was denied Social Security benefits. Waite challenges the Secretary's decision that he does not suffer an impairment that meets or equals one listed in 20 C.F.R. Part 404, Subpart P, Appendix 1. He also challenges the Secretary's conclusion that he is able to do some light and sedentary work with his limitations. Waite also argues that he has newly discovered evidence which warrants a remand for further consideration. We affirm.

I.

Waite, a thirty-eight year old former truck driver who has earned a general education diploma, was injured in a motorcycle accident on September 9, 1983. His injuries included a broken left leg, a dislocated left wrist, and a left temporal hematoma, all of which required surgery. His most serious injury, however, was to the nerve network in his left arm which left it completely and permanently paralyzed.

Waite was released from the hospital on December 29, 1983, walking with the use of a cane. An examination in February 1984 showed nearly complete recovery from all injuries except the left arm paralysis accompanied by some pain. It also revealed that his leg had essentially healed and that he had a full range of motion of the hip and knee. The report indicated that Waite was able to walk without a cane, although he was using one for additional stability.

Waite applied for benefits, and a hearing was held before an Administrative Law Judge (ALJ) on April 26, 1984. Waite testified that he had not worked since the accident and his daily activities were limited to watching television, reading, and visiting friends. He complained of pain in his paralyzed left arm and of occasional headaches. He also stated that he felt no pain in his leg, but that there was some stiffness. After the hearing, the ALJ received additional evidence, including a report of a vocational expert. The expert reported that someone with Waite's impairments, background, and education could perform certain light and sedentary occupations such as a retail sales clerk, a telephone operator, a ticket agent, a self-service gas station attendant, a crossing guard, and a security guard/doorkeeper.

The ALJ concluded in a written opinion on June 17, 1985 that Waite was not disabled within the meaning of the Act. The ALJ reasoned that Waite's impairment did not meet or exceed one of the list of specific impairments and that he was able to perform other work within the economy. Waite appeals, arguing that his impairments did meet certain listings or their equivalents and that the ALJ's analysis of his residual functional capacity was not supported by the record. He also alleges that newly discovered medical evidence demonstrates that he continues to suffer leg limitations, pain, and headaches so that the case should be remanded to the Secretary for reconsideration.

II.

Waite submits that he met the listed impairments of section 1.13 which requires benefits to be awarded for "soft tissue injuries of an upper or lower extremity requiring a series of staged surgical procedures within 12 months after onset for salvage and/or restoration of major function of the extremity, and such major function was not restored or expected to be restored within 12 months after onset." 20 C.F.R. Part 404, Subpart P, Appendix 1, § 1.13. Waite argues that the "thrust" of listing 1.13 is the loss of the major function of an extremity which was not restored or expected to be restored within 12 months, and that he qualified under this listing because he permanently lost the use of his left arm. In support, Waite cites a letter from one of his treating physicians expressing the opinion that his impairments met listing 1.13.

We initially note that an ALJ is not bound by a doctor's conclusion that a claimant is "disabled" because he meets the requirements of a certain listing. See Garrison v. Heckler, 765 F.2d 710, 713 (7th Cir. 1985); 20 C.F.R. § 404.1527 (physician's conclusions not dispositive). Moreover, we disagree with Waite's interpretation of listing 1.13. First, a different listing directly addresses the loss of function of an extremity. Section 1.09 involves the loss of function due to neurological deficits, and for benefits it requires the loss of both hands, both feet, or one hand and one foot. Waite's interpretation of listing 1.13 would place it in conflict with listing 1.09 because a claimant who has permanently lost the use of an extremity would qualify for benefits under listing 1.13, but he would not meet the more specific requirements of listing 1.09. Likewise, Waite's reading of the regulations would make the two listings duplicative because a claimant paralyzed in two extremities would qualify under both listings. We do not think such anomalous results were intended.

Instead, listing 1.13 clearly requires the imposition of a series of surgical procedures to restore major function of the extremity. Despite the lack of any decision interpreting this regulation, we agree with the district court and the Secretary's interpretation of this listing: it is directed at the loss of the use of one extremity, not in itself disabling under the regulations, where restoration of function will require repeated staged surgical procedures over a lengthy period, thus making an individual who would otherwise be capable of substantial gainful employment unavailable for work because of these repeated surgical procedures. This interpretation is supported by the phrases "staged surgical procedures" for "salvage and/or restoration." Under Waite's interpretation, this language would be unnecessary. If the regulations, as Waite claims, were intended to grant benefits to one who has lost the use of an extremity for twelve months or more, then the wording ...


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